Look at RRS (b) - this provides guidance on obtaining redress when a Part 2 rule has been broken.

Without damage or injury, no grounds for redress on a RRS 19 breach. If the breach was intentional and you present a case to the jury on RRS 2 and they find in your favor, then redress could be awarded. There are several unfortunate loopholes in the RRS in this regard. Another one: Boat rounds leeward mark and drops kite in water and on top of boat behind and outside giving room. In the process, outside boat has to stop and clear inside boat's kite from their rig. No damage, no injury. While this is going on, 10 boats that were behind round and pass. Wrong place at the wrong time and not likely any redress there either.

So, just to be clear, I'm not asking if there is redress in RRS 19, I do understand that this relies upon a Rule 2 violation.

What I'm trying to get to is, given all the actions the inside boat takes to force the outside boat to give room and even after all that the outside boat does not yield room, does that rise to the Rule 2 standard? If not, what would it take?

Ang

PS Randy, your spin-fall scenario is definitely wrong-place, wrong-time, tough tittly-winks scenario. I doubt a competitor would purposely drop their spin and risk that rip. In this scenario, the boat is calling for room, moving to take the room and even tapping the boat to get the room ..and the outside boat is ignoring all of that and forces the inside boat into the shoal (that they both know is there). Seems very different to this sailor.

Let's toss in there that the outside boat is 1 ft shallower draft than the inside boat and they both have knowledge of each boat's relative draft, so the outside boat knows that the inside boat will hit ground first without risk to them.

In order for a boat to get redress under 62.1(d) a boat has to have broken rule 2. To be absolutely clear it is not for the PC considering redress to consider whether or not rule 2 has been broken but for the PC considering the original breach of the rules (rule 19 in your case) to decide if rule 2 has also been broken. Only after the PC has decided that rule 2 has been broken and penalised a boat under that rule may rule 62.1(d) be considered for the other boat. If rule 2 was broken then redress may be given.

So it is clear that this is a rule 2 issue and not a rule 62 issue. In general terms rule 2 is broken when a boat either deliberately breaks rule to gain an advantage or knowingly breaks a rule and takes no penalty. The PC would have to consider all the evidence to decide whether or not either of these conditions apply to an incident and make their decision as always on the balance of probabilities.

There can be no hard and fast rule and each case will have to be decided on it's own merits.

Angelo. I think this is an interesting question.

When it comes to Rule 2, the protestee’s crew’s intention is a very important consideration. As a jury cannot read the crew’s minds, they have to make inferences about the crew’s state of mind from the crew’s conduct and from the surrounding circumstances. Your question is, as I understand it, whether the conduct and surrounding circumstances are sufficient to make such an inference in your scenario.

In this scenario, I believe that further questions of the witnesses would be required before a jury could conclude that Rule 2 had been broken. Did the outside boat intentionally run the inside boat aground? What did the crew of the outside boat know about the inside boat’s predicament? Did the outside boat know that the depth of water was insufficient for the inside boat’s draft? Did the inside boat have other options to avoid running aground?

It will be necessary to think carefully about how such questions are framed because if you ask simply, “Did you intentionally run the inside boat aground”, then naturally the answer will be “no”. The framing of questions in these circumstances is a topic in itself.

If it can be inferred that the outside boat intentionally ran the inside boat aground, then there will be a clear breach of Rule 2 and most likely Rule 69.1. But what if it was not intentional, but reckless?

World Sailing case 138 states that acting recklessly or in a manner that does, or is likely to cause damage or injury is an example of an act of misconduct, but a mere misjudgment would not be. That case goes on to discuss a port-starboard scenario. If there is evidence that the port tack boat knew or should have known that she would not make the cross, but attempted to do so anyway, then that would be unfair sailing. A mere misjudgment would not be.

A Yachting New Zealand appeal decision found that a boat broke Rule 2 when she followed predetermined plan to sail between another boat and a mark, disregarding the rules and the risks of injury and damage, even though there was no finding by the protest committee that a rule was deliberately broken.

In Angelo’s scenario, if questions of the protestee can establish that the outside boat acted recklessly in regard to her obligations under the rules or in regard to the safety of the inside boat and her crew, then I believe that she would have broken Rule 2 and the inside boat would be entitled to redress. If there was merely a misjudgment, then Rule 2 would not have been broken.

To all .. I agree that it gets to intention and knowledge.. so in my scenario ... all the facts are found in the protest hearing below (both agree on these facts)

1. Inside boat hails for room to avoid a shoal continuing obstruction .. since none visible on the water, let's assume the reasonable thing was done in the hail .. "Hey Outside-Boat, I'm inside and we are approaching the shoal on my chart plotter! ! I need room or I will run aground. I've got a 6 foot draft! and we are low tide!" .. no movement by Outside.
2. Inside Boat starts taking the room she is entitled to, "Hey, Outside .. I'm closing to avoid the shoal .. you need to give me room!" .. no movement by Outside.
3. Inside Boat makes contact with Outside (no damage, injury), "Outside .. I need room NOW!" .. no movement by Outside
4. 5 sec's later, Inside runs aground and Outside sails on (being of shallower draft)

What I'm trying to explorer here is that this is typically how Obstruction-Room is asked for and granted. With all the normal and expected communication between a boat requesting room that occurs (and assuming that Outside's movement is unrestricted by other Obstructions), and then take that to the point an inside-boat makes contact trying to avoid the Obstruction, how can it be that the Outside Boat ran Inside aground without Knowledge and Intention?

PS .. As an aside .. what I'm also thinking is that being run-aground due to a foul should be specifically added to the redress list.

When you look at what level of damage would be necessary for redress, it's damage that effects the ability for the boat to continue racing effectively. I would argue that being run-aground is akin to significant damage in this regard. Also, it's dangerous as nobody knows what's exactly unseen on the water's floor.

I'm not suggesting that we make the significant-damage/run-aground equivalency ourselves under the current rules, but I do think they are having a similar effect to a competitor and that this should be considered in future rule revision.

Ang

From the facts stated it seems clear the outside boat did not provide for the inside boat to pass between the outside boat and the obstruction as required by RRS (b). And from the facts, we can conclude she intentionally did not respond to the hails of the inside boat requesting more room. Rule only requires that we conclude that the boat in question intended her actions, not that she understood the extent of the danger. I would vote for a decision that she broke RRS but would suggest the penalty should only be a DSQ as there was no damage.

I would think the policy behind this is very important. The outside boat should not be able to impose her conclusion that there was no danger when it is the inside boat that will suffer the consequences. If the inside boat believes there is an obstruction, the outside boat should give her room. If the outside boat thinks the inside boat took too much room, then she should protest. Otherwise, I think the inside boat gets to decide when she thinks her boat is in danger and the outside boat must respect that.

Hans ...

If there would be a redress possibility for being run-aground, competitive sailors would be more inclined to take the risk. And never should it be convenient in regards of the results to be run aground.

I can't imagine a competitive sailor thinking it would be "convenient" to be run aground and take their chances with damage to their boat in the hopes of "improving" their position though redress.

The inside boat perhaps could have slowed down or prevented the situation at an earlier time.

I have a hard time putting it upon a ROW or Right-to-room boat to read the mind of a keep-clear/give-room boat and assume keep-clear/give-room boat will break a rule (see Case ).

Also, a boat calling for room too early could be penalized later under RRS 21.1(a) as well, (see Case ) ..

A boat calling for room doesn't have the liberty to call before it's needed and therefore likely will not have enough time to do other maneuvers. Two boats under spinnaker for instance, it might take quite a while for the inside boat to slow herself to the point that she can pass clear-astern the outside boat.

Ang

Paul and Angelo. A conclusion that a boat broke a rule should only be made if that logically follows the facts found, and it will only logically follow if no alternative conclusion can reasonably be made on those facts. On the facts found in this scenario (which I assume are not intended to be complete) one cannot conclude that the outside boat broke any rule let alone Rule 2.

As I mentioned in my earlier post, to determine whether there was unsportsmanlike conduct it will be necessary to ask questions and find facts about the outside boat’s state of mind rather than just finding facts about what the inside boat did. That will involve giving the outside boat an opportunity to give an explanation. If the outside boat can establish, for instance, that her chart showed the depth of water was sufficient, or that her failure to turn was due to a mechanical issue, or that her crew were inexperienced and were mistaken about their location, then it is unlikely that she would have broken Rule 2 (although she may have broken other rules).

Paul, you say “Rule 2 only requires that we conclude that the boat in question intended her actions, not that she understood the extent of the danger”. Where do you get that from? If that was true, then almost all port-starboard incidents would constitute a breach of Rule 2, when a port tack boat tries to cross a starboard boat but miscalculates the distances. Case 138 states that this is not a breach of Rule 2.

You both seem to also be confusing Rule 19.2(b) with Rule 20. There is no provision in Rule 19 whereby an outside boat is required to respond to any decision or hail of the inside boat for room, particularly if the overlap was established when there wasn’t room for the inside boat in the first place. You say that if the inside boat took too much room the outside boat should protest. What if the inside boat was to leeward?

This is an attempt to write facts and conclusions, for this scenario, in which one may conclude that Rule 2 was broken. I've invented some further facts.

Facts found
TRUMP and SPICER are on a starboard reach, overlapped with TRUMP half a boat length to windward.
A shoal ahead of the boats requires a luff of 30 degrees to avoid. SPICER has 10 boat lengths of navigable water ahead of her.
SPICER advises TRUMP that her chart plotter shows there is insufficient water ahead and twice hails TRUMP to luff to avoid the shoal. This is all heard by TRUMP’s crew.
TRUMP’s skipper is aware of the existence of the shoal ahead and was able to luff to avoid it, but he continues steering straight ahead without knowing the depth of the water.
SPICER luffs but her starboard bow comes into contact with TRUMPS port side while TRUMP continues sailing straight ahead towards the shoal.
SPICER, who is prevented from luffing further by TRUMP, runs aground.
TRUMP then luffs and tacks away from the shoal. She completes a two turn penalty but does not offer SPICER assistance.
SPICER remains grounded for 3 hours and withdraws from the race. There is no damage or injury.

Conclusions
TRUMP, to windward, did not keep clear of SPICER and broke RRS 11.
When at an obstruction, TRUMP, the outside boat, did not give SPICER room when she was able to do so, and broke RRS 19.2(b).
TRUMP sailed in reckless disregard for the rules and the safety of SPICER and her crew and thereby broke RRS 2.
SPICER is entitled to redress under RRS 62.1(d) … etc etc

(Please note that Trump and Spicer and the names of boats in the Mexican Border Yacht Club, and the possibility of sharing of those names with any person is entirely coincidental …)

John G .. I had provided facts-found a couple posts back (a,b,c,d). Did you see those? If so, you found those circumstances insufficient?- Ang

Angelo

I read the four facts found in your post that begins “To all … I agree ..” I read those fact together with the what you wrote in the first post of this thread.

This is just a personal opinion, but I’m afraid that the facts found which you provided in this thread are not sufficient to reach a conclusion on Rule 2 or on other rules (apart from possibly Rule 19). For instance, the facts don’t say which boat was to windward or leeward, and therefore who had right of way.

The facts don’t say whether the boats were overlapped during the whole incident and if not, what were their respective positions?

There are no facts about the danger or threat the boats were facing (other than the fact a boat ran aground) when the essence of the claimed breach of Rule 2 relates to exposing the inside boat to that danger. The fact that someone hails something does not prove that it is true. How predictable really was it that a boat would run aground? Was the outside boat able to continue sailing straight ahead without running aground?

There are no facts about the outside boat’s state of mind or whether they were capable of giving the inside boat room. Did they know the shoal existed and it’s location? Did they understand the inside boat’s predicament? Did the outside boat’s crew hear the inside boat’s hails? Did the outside boat deliberately cause the inside boat to run around?

For how long was the inside boat grounded? How did the grounding affect her? If she was a centerboard boat (with a 6 ft draft) or a boat with a lifting or canting keel, then the grounding would not have been so serious and possibly could have been avoided.

Without knowing these facts we cannot decide a protest that involves Rule 2 and redress because there are several different conclusions and outcomes that are reasonably possible.

Having said that, I don’t think my effort was perfect either. Reading it again I can see there are still some loose ends.

John,

First, I appreciate the detailed replies ...

The facts don’t say whether the boats were overlapped during the whole incident and if not, what were their respective positions?

I see that I could have been more verbose in describing the incident.. I did say in the first post "we were discussing an inside boat sailing within her 19.2(c) rights where the continuing obstruction was a shoal ... ," and then later ... "So assuming the facts are found that the inside boat was entitled to 19.2(c) room-rights ...". then the a,b,c,d facts found ... (though strewn though-out the replies). It would have been better for me to have reformed the issue soup-to-nuts at that point as you did in your example.. your point is well taken.

All that said, I think the intention of the discussion was clear enough that the inside boat was overlapped in such a way that she had room-rights against the shoal (and that she was relying upon those rights and not others for room).

There are no facts about the danger or threat the boats were facing (other than the fact a boat ran aground) when the essence of the claimed breach of Rule 2 relates to exposing the inside boat to that danger.

I don't see that as requirement. See Cases 31, 34, 67 ... intention and knowledge that they are breaking a rule seem to be the only issues here.

The fact that someone hails something does not prove that it is true. How predictable really was it that a boat would run aground? Was the outside boat able to continue sailing straight ahead without running aground?

Yes, the outside boat continued, but she was 5' draft instead of 6'. Even in OD, I've run aground (hard-aground requiring the engine to extract and thus retire) when I was only 2 feet abreast to my competitor who sailed away (I didn't call for room, my bad). You bring in a lot of "what-ifs" .. and we can always do that in any scenario .. but I think the 3 points you make above get to the heart of the issue and to the heart of Paul's reply as well .. and where I most strongly disagree with your approach (and really the point I hoped to explore here).

IMO opinion, an outside boat is obliged to provide room that an inside boat calls for (with rights to such room) to avoid an UNSEEN, UNDERWATER obstruction. I think an outside boat could protest if she later believes that an inside boat called too early or for too much room, but is obliged to give the room that the inside boat believes she needs to pass. Outside can log her position and protest later .. but NOT force a inside boat into waters she believes are too shallow for her.

In my scenario, the inside boat goes to the extent of making contacting with the outside boat .. trying to get room (after other hails and movement).

I think you are describing an impossible and unworkable standard here. If not enough room is given, the inside boat hits bottom ... so what does the outside boat say? "oops .. you were right?" .. really? If enough room is given, one will never know if it was just enough or too much for, in reality, enough room to pass an invisible obstruction is always more room than the absolute minimum needed.

PS .. this is why I think being run-aground by another boat who is found to have broken a rule of Part 2, should be added to 62.1(b). As in this scenario, the outcomes for the fouling-boat and the grounded-boat are disproportionate. Outside could do their turns and keep racing while Inside might need to retire to extract the boat. We shouldn't be left to mind-reading of Outside's intent. In my mind, being run-aground is akin to significant damage or injury. Both have the effect on the grounded boat's ability to continue to compete in the race.

John, I don't think you're alone in how you've approached a question concerning RRS 2. However, I believe there are a couple problems with your approach. First, the standard of proof is not that it "only be made if it logically follows the facts found, and it will only logically follow if no alternative conclusion can reasonably be made on those facts." The standard of proof in protest and redress hearings, including questions concerning RRS 2, is a preponderance of the evidence (it is more likely than not that the assertion is true; see Case ). The language in RRS that it should be "clearly established that the principles of sportmanship and fair play have been violated" is not an increase in the standard of proof, but that our facts found must clearly violate the rule. Thus when we conclude that the outside boat did not change course, based on the preponderance of the evidence, we can conclude her actions violated the rule if those actions clearly violate the rules of fair play and sportsmanship.

Secondly, proving intent is a difficult task. However, intent can be established based on a pattern of conduct and circumstantial evidence. RRS 2 has been interpreted to apply where a competitor intentionally breaks a rule (Case ). However, this does not mean that the jury has to have direct testimony that the competitor intended to break a rule. That would obviously be a very high, if not impossible, hurdle. The jury can decide that the competitor intentionally broke a rule based on evidence she acted intentionally, but need not find that she acted to bring about the result that a rule was broken. Thus, if the jury finds that the outside boat intentionally did not change course, it can conclude she intentionally broke RRS 19. The example in Case is of a port tack boat continuing to cross a starboard tack boat even though she believes she won't make it. Had she made it, she would not have broken the rule. But because she intentionally crossed believing she wouldn't make it, she was intentionally breaking RRS 10. The more common example is a boat that hits a mark and fails to do a penalty, and it is clear to the witness that the competitor could not have been unaware of hitting the mark. Based on the actions of the competitor, it is clear they intended to break RRS 31 and/or RRS 44.

And the above discussion is only in relation to intentionally breaking a rule. RRS 2 can be applied where a competitor is acting recklessly or in a manner likely to cause damage or injury (Case ). In that matter, we only need establish that she intended her actions, not that she had any intent as to breaking a rule. If her actions were reckless, or are likely to cause damage or injury, she has broken RRS 2 even if we find she had no intention to break a rule. Thus, if we conclude that the outside boat intentionally took action that was reckless in not giving the inside more room at the obstruction, we can find she violated the rules of fair play and sportsmanshiip.

I have suggested in the past, and will repeat it here, I believe that most judges are too reticent to apply RRS 2. And I believe juries unnecessarily over complicate the analysis applying some elevated requirements based on the perceived stigma of applying RRS 2. But I believe that the perceived stigma of RRS 2 is greater in judges than in competitors, and we are incorrectly not applying the rule where it should apply. I believe we should strip away the bias and apply the rule as written.

Paul. I was initially not intending to reply to your last post, but I think a reply is appropriate as there are some very fundamental misconceptions being aired in a public forum. The way your post reads is that you are confusing “facts found” with the evidence used to find facts. You are also applying some “burden of proof”, as if protest hearings are some type of adversarial hearing like in a US court of law.

“The preponderance of evidence”, as the term itself suggests, refers to evidence. When some evidence points to the existence one fact while other evidence points to a contradictory fact we look at the preponderance of that evidence (its quantity, weight, reliability etc) to make a judgment to obtain the "facts found" that are necessary. There is no “burden of proof” that allows us to reach conclusions that a boat broke a rule when the “facts found” are inadequate and equivocal, but we feel “it is more likely than not that the assertion is true” (see IJ Manual paras K.18 & K.21).

Take this scenario. Facts are found that (1) Boat A was on starboard tack; (2) There was contact between Boat A and Boat B; (3) Most of the fleet was on port tack. Conclusion (applying a “burden of proof” as you have done, to see what is more likely than not) Boat B broke Rule 10.

In this case, the facts found are inadequate and the decision is not logical, because the possibility remains that Boat B may have also been on starboard tack. There is a strong possibility that Boat B is being wrongfully penalized.

You say that conclusions do not have to logically follow the facts found, but Rules 63.6 and M3.4 require that the conclusions be based on the facts. When more than one possible conclusion remains, the protest committee has not based its conclusion on the facts but has based it’s conclusions on an assumption as which alternative conclusion to follow. While most of the fleet may have been on port, the protest committee has not established that Boat B was on the same tack as most of the fleet.

If this decision goes to appeal, the national authority will send it back to the protest committee to find further facts, under Rule R5, because the appeal panel will not be able to tell whether Rule 10 had been broken or not.

What the protest committee was required to do in the first place was to ask further questions to obtain evidence as to what tack Boat B was on, and then if she was on starboard, what her rights are (see Rule M3.4). If there is a conflict of evidence about that, and after pursuing all reasonable investigations, the protest committee should look at the preponderance of evidence to see what is most likely, but that is not a burden of proof.

By asking further questions, the protest committee are not “applying an increase in the burden of proof” or “applying some elevated requirements based on perceived stigma”, but simply doing their job, finding the necessary facts rather than leaving the outcome of the protest to chance. As I mentioned above, protests are not adversarial hearings where a judge has to rely on whatever evidence the parties choose to provide and then make a call.

In this thread, Angelo provided some “facts found” and asked whether they were adequate to reach a conclusion that the outside boat broke Rule 2. You say the facts are adequate in themselves to find the outside boat broke Rule 2 when there remain huge uncertainties. Most notably, there is no consideration of any explanation the outside boat may have for why she did not change course.

If the outside boat had genuinely but mistakenly believed there was adequate depth of water and had reasonable grounds for that belief (such as a chart published by a reliable source), then how is that a breach of sportsmanship? She would be in the same category as the port tack boat who misjudged in Case 138 and who didn’t break Rule 2. If the outside boat was physically prevented from giving the inside boat room by a mechanical issue or an obstruction outside her, then how would that be bad sportsmanship?

These are very real possibilities, that frequently occur in real life. They cannot be discounted “on the preponderance of evidence” because there is no evidence one way or the other. There is only a guess.

Obviously, one needs to have a robust approach when considering questions of bad sportsmanship and it is important not to be influenced by sympathy. However, Rule 2 itself says that it must be clearly established that the principles of sportsmanship and fair play have been violated, and it can only be clearly established if there is a full and proper investigation. Juries who are reluctant to find a boat broke Rule 2 before conducting a full investigation are only doing their job.

Angelo, I understand what you are saying. Could you please identify which rule is broken if a boat, passing a continuing obstruction calls for room when room is not required (by an honest mistake). You wrote that the outside boat can protest, but what rule can she protest under? Could you also identify which rule the outside boat breaks if she fails to give room in those circumstances.

John .. thanks for your thoughts.

If the outside boat had genuinely but mistakenly believed there was adequate depth of water and had reasonable grounds for that belief (such as a chart published by a reliable source), then how is that a breach of sportsmanship? She would be in the same category as the port tack boat who misjudged in Case 138 and who didn’t break Rule 2. If the outside boat was physically prevented from giving the inside boat room by a mechanical issue or an obstruction outside her, then how would that be bad sportsmanship?

I did actually state that there was nothing preventing Outside from providing room. I will say that this has been a great tutorial for me on how better to describe a question in the future though.

I also said that Inside was entitled-to and relying-upon her 19.3(c) rights to pass this shoal. To me that was enough to satisfy the scenario, for if Inside was STB and Outside Port, then Inside could have relied upon RRS 10 .. and if she was leeward, she would have RRS 11 or 17 (surely the course to avoid a shoal isn't above proper course).

Inside was relying upon "room" to which she was entitled .. not on Outside to "keep-clear".

Finally, on your comment above, I would disagree that this is like Case 138.

My main point in this exercise was to shine a light on what I think is a hole in the RRS's regarding 'underwater obstructions' (something not defined by RRS). It's one thing to misjudge where you put your boat based upon what one can see. IMO, it's entirely something else to force your judgement on another boat as they try to avoid something that neither of you can put eyes on.

This entire exercise for me was to illustrate something that I was mulling over, that ...

1. being run aground by another boat's breaking of a Part 2 rule, should be added to 62.1(b) along with "damage", and/or
2. a rule be added for 'underwater obstructions' that provide an Inside boat relying upon 19.3(c) room-rights the benefit of deciding what is safe for her.

Ang

John .. (funny .. we must have been typing at that same time)

You wrote that the outside boat can protest, but what rule can she protest under?

Since in my scenario, Inside is relying upon her 19.3(c) room-rights .. that implies that she is not the ROW boat .. for if she was, Outside would be a keep-clear boat and not a give-room boat. It wouldn't really be much of a discussion if Outside was breaking RRS 10 or RRS 11.

So, the rule Outside would protest would be whatever RRS is giving her ROW in this circumstance .. say RRS 10 or RRS 11 for instance. Against her ROW is 19.3(c) giving Inside room .. that's where the tension lives .. ROW Outside vs 19.3(c) Inside.

That would be my WAG at it. - Ang

John, I've edited my comment to more closely follow the language of Case . I apologize for being a bit sloppy there. However, I'm not swayed by your argument and believe that what I said is accurate.